Homeland Security Detained US Citizen Inside The US, Used Intercepted Emails To Quiz Her About Her Sex Life

from the free-country? dept

Just recently, we wrote about how the Department of Homeland Security's (DHS) Customs and Border Patrol (CBP) has been increasingly detaining and harassing people at the border (or near the border) under highly questionable circumstances -- and then refusing to comment on any of it. Instead, CBP has relied on a cloak of secrecy to live outside the law, acting out what we've come to expect from authoritarian police states. Recently, the ACLU filed a lawsuit on behalf of a woman, Christine Von Der Haar, who is a senior lecturer at Indiana University, after CBP detained her at the airport.

She was not entering or leaving the country. She was not even boarding a flight. She merely accompanied a friend to the airport so that he could retrieve some computer equipment that he had shipped separately a few days earlier. After detaining Von Der Haar, CBP officials, who clearly had access to some of the emails Von Der Haar and her friend had sent back and forth, quizzed her about her sex life and if she was planning to marry the friend.

CBP appeared to be concerned that the friend, a Greek national named Dimitris Papatheodoropoulos, was trying to stay in the country illegally. Von Der Haar had first met Papatheodoropoulos 40 years earlier while studying abroad, and the two had recently reconnected thanks to the internet. Papatheodoropoulos had obtained a B1/B2 business/leisure visa to the US which actually let him enter and leave the country for a period of 10 years. He came to the US for business, but while there also wished to visit Von Der Haar since they'd been catching up online.

After detaining and questioning Papatheodoropoulos for some time, CBP officials took Von Der Haar into another room and started asking questions specific to the emails between the two of them. According to the lawsuit:

Given that Mr. Papatheodoropoulos had retained his hard drive that contained the emails, the only way that the Customs and Border Protection Agents could have reviewed the emails is for someone to have surreptitiously monitored the communications between Dr. Von Der Haar and Mr. Papatheodoropoulos and reported those communications to the agents questioning her. Defendant Lieba admitted that employees of the United States had read email communications between Dr. Von Der Haar and Mr. Papatheodoropoulos.

This raises all sorts of serious questions. As the post at Papers Please (linked above) notes:

CBP officers grossly exceeded their jurisdiction. Dr. Dr. Von Der Haar’s US citizenship was never questioned; she wasn’t trying to enter, leave, or ship and goods in or out of the country; and she was never accused of any crime. In general, immigration (as distinct from customs) offenses are handled by Immigration and Customs Enforcement (ICE) and the Border Patrol, not CBP. We’re curious what basis CBP will claim for its officers’ authority to detain and interrogate Dr. Dr. Von Der Haar or obtain her email.

The post also wonders how or why CBP got access to those emails, wondering if they were shared by the NSA. There are, of course, other possible explanations as various investigations may have resulted in CBP getting access to the emails separately, but it still raises serious questions about under what authority those emails were obtained and why she was then quizzed about her sex life.

The claims that officials made about Papatheodoropoulos were equally questionable. Again, from the lawsuit:

On June 8, 2012, Mr. Papatheodoropoulos was served
with notice that a proceeding was
initiated against him for removal from the United States. The notice stated, in relevant part:

You obtained your B1/B2 visa by misrepresenting your intentions to come to the
United States to wit; It is your intention to immigrate to the United States, you
abandoned your foreign residence, you intend to overstay your admission to the
United States.

None of this was true.

Mr. Papatheodoropoulos consulted with lawyers and the Greek Consulate in Chicago and
the removal action did not proceed.

His passport was returned to him and he left the United States at the end of August of
2012 and has not returned

The whole thing seems ridiculous yet again, and you can expect DHS to use its standard cloak of secrecy. I'm sure they'll argue some sort of state secrets or national security claim to try to get the entire case thrown out.

Re: New Rule!

For the Children!

They were doing this for the children!

Just think, if these two were married and hyphenated their names, their children would have to learn to spell Von Der Haar-Papatheodoropoulos and forever be unable to fill out government forms because there are not nearly enough boxes for all of those letters.

Re: Definitely time for a Bivens suit

Definitely time for a criminal prosecution...though it's unlikely to happen.

There are a pair of federal laws -- Title 18, Chapter 13, Sections 241 & 242 -- that make it a crime for an agent of government to use their official authority to do pretty much anything someone could win a civil rights lawsuit over in civil court.

In the case of a conspiracy (and very few federal agents act alone), the minimum sentence for a conviction for violating rights is ten years in federal prison.

If you sue and win in civil court, you get paid with taxpayer money -- and the people who violated your rights don't pay a penny. If the government REALLY wanted to stop civil rights abuses, they'd prosecute.

Re: Definitely time for a Bivens suit

The really cool thing about a Bivens suit is that the damages are supposed to come from the individual who committed the civil rights violation under color of law, not the agency which employs them. You can also, under the legal doctrine of, respondeat superior, sue the agency and their immediate superiors for failing to adequately train and supervise them.

The part about the emails is interesting, the CBP behavior if they suspected visa fraud is less so. (Being a legal immigrant married to a US citizen - before I became a permanent resident (before 9/11) any contact with officials at airports could be nerve-wracking, and not just those in the US). SNAFU.

We are seeing more and more of this thug type behavior as higher ups demand the workers on the line check up on their data whenever it can be arranged.

Much the same as Miranda in the UK, this wasn't about terrorism, nor about Mrs. Von Der Haar's intentions to travel. It's plain where the data source came from which indicates someone from law enforcement/CBP/NSA is interested in the situation.

This sort of news does not sit well with the average US citizen. I have no idea how long it goes on before the populace has enough and retracts it's consent to govern. But as acts like this continue, as news of such spreads, the level of unrest and aggravation increases. All it takes is the proper spark provided by all these agencies that recognize no law, moral or ethical restraint, and no overseeing checks to provide it. It is not if, it's when it occurs. It may take a single news article to incite the populace or it may take decades more but if it continues on this path, the end result is certain.

Re: Re: THIS!

Plan on reacting to revolt

The problem is that based on purchases of ammo and equipment, it seems like the populous revolting is something that is planned on and will result in a never ending Marshall Law situation. They keep doing things to try to get a reaction and we keep not reacting the way they want.

Re: Plan on reacting to revolt

It is likely that at least a 3rd of the people working in government and the military will join the revolt. No matter how much they prepare it cannot be survived. Same as the way Japan did not react like a bunch of stealing and mobbing idiots during Fukishima is the same that the US will not react like a 3rd world dictatorship during a revolution. I am talking about an actual revolt not some lame demonstration or march.

Re:

Tim Cushing's article on the GAO's scathing report on the failure of the CBP to update their computer system (TECS) already made me suspect a direct reliance of the CBP on the NSA's resources. Looks like that could very well be the case.

Welcome to 'Merica.Where it doesn't matter how it sounds to all of you, but instead a small group who needs others to be held down to feel lifted. As long as people care more about abortion, gay marriage, and a host of other non-important issues there is no air left to ask why in the blue blazes was this done.People can't imagine it happening to them, because they are good people (tm). And when it finally does, everyone else just thinks they just weren't good people (tm) who deserved it.

At some point we really need these people to stop answering emails from Nigerian Princes, discussing the secret Muslim hand signals hidden in Obama's last speech, and make them understand that they are the problem. The apathy towards serious issues while they busy themselves trying to make reality bend to their will over absolute crap.

Law enforcement isn't sunshine and rainbows.

As someone who used to work for CBP, I sympathize with Von Der Haar and Papatheodoropoulos. I'm sorry for their unpleasant experiences, and I know that I've inflicted similar discomfort on more people that I'd care to count. Law enforcement isn't sunshine and rainbows. About the best you can hope for during immigration enforcement is that someone feels that you're being respectful while you destroy their dreams.

@asteris and I had a brief conversation about this story & he urged me to comment on it in greater detail, so here we go: there are several parts of this story which don't make sense or are just way off the mark.

First, the allegation that CBP had access to their email correspondence via NSA intercepts is nonsense. If reports of NSA email collection are legit then agency has probably intercepted their emails, but there is absolutely no chance that those records were shared shared with front-line CBP officers. It didn't happen, it's not going to happen, and suggesting it did happen is ludicrous. It is conceivably (maybe) possible that DHS HQ intel units have access to NSA intercept data, but they aren't going to waste their time looking putting lookouts for immigrants without visas. If CBP officers have access to email intercepts, we should assume that post officer clerks do too.

It is much more likely that the CBP officer lied about reading their emails to elicit a confession. That, while sleazy, isn't terribly uncommon (or prohibited).

Second, there's a conflict between the reported purpose of visiting the "CBP office" and the actions taken there. CBP *does* routinely deal with immigration issues, that is part of their core mission. This is simply false:

In general, immigration (as distinct from customs) offenses are handled by Immigration and Customs Enforcement (ICE) and the Border Patrol, not CBP.

The type of immigration offenses CBP deals with are sharply delimited to admissions, not removing people previously admitted. CBP has authority when someone arrives in the US, but not after they've already arrived. This right here, is important:

On June 8, 2012, Mr. Papatheodoropoulos was served with notice that a proceeding was initiated against him for removal from the United States. The notice stated...

There are four possibilities with this letter: (1) it was issued upon his arrival in the US; (2) his inspection was delayed to a later date (usually an alternative to holding someone in jail overnight); (3) it was issued by an immigration court; or (4) a whole group of CBP officers and managers massively overstepped their legal authority. While #4 is hypothetically possible, #1-3 are routine and regular. I assume that Von Der Haar's description is mostly accurate so #2 is probably what happened. This means that, most likely, Papatheodoropoulos knew that he was in trouble with US immigration before he went to the office that day (even if she did not).

Third, I know it makes people uncomfortable, but romantic relationships between residents and non-residents are legitimate lines of inquiry for CBP. Entering on B1/B2 visas with intent to marry is one of the most common immigration violations for EU citizens, and it's CBP's job to catch those violations. This isn't a new law or practice, it's almost certainly older than most of the CBP officers now working. If you don't like it, I urge you to demand congress reform the law because I assure you that the front-line officers have almost no power over that matter.

I'll be interested to hear where this case goes. the false arrest complaint sounds pretty novel, and might conceivably make new law, but I kinda doubt they'll press on after getting discovery on the email intercept allegations.

Email source

I think a very pertinent question at this point is not so much that the DHS apparently had copies of their emails but rather, WHAT email PROVIDER were they using? I have suspicions that they were not both using Internet Service Provider email accounts but more likely Hotmail, Gmail, or similar "public" providers that have been exposed as having given the government "back doors" into their workings.

Plus, regardless opendna's comments above, the NSA are not the only government agency with access to warrants (or not) to get at people's email accounts. It's very possible DHS has their own access to getting at this information.

I'd like to know what email provider one or both of them were using. Could prove interesting.

Re:Warrants

It is incredibly uncommon for CBP to use warrants because its domain is that weird area at the border where the Fourth Amendment doesn't apply and few decisions can wait 24 hours. It's a good rule of thumb that any immigration issue which requires a warrant (or can wait that long) probably falls under ICE's jurisdiction.

If DHS has backdoor access to email providers, the officers who can be compelled to testify by this suit won't know any more about it than the rest of us.

...unless CBP was acting at the request and direction of ICE/DEA/FBI/CIA/etc. That happens every once in a while, and then things get weird (see Maher Arar).

Employees are always the defendants.

There is nothing noteworthy about the CBP officers being defendants. The employees are almost always the defendants until their agency decides that it too would like to be a defendant. The legal term of art is "sovereign immunity":

In the United States, the federal government has sovereign immunity and may not be sued unless it has waived its immunity or consented to suit. See Gray v. Bell, 712 F.2d 490, 507 (D.C. Cir. 1983). The United States as a sovereign is immune from suit unless it unequivocally consents to being sued.[1] The United States Supreme Court in Price v. United States observed: "It is an axiom of our jurisprudence. The government is not liable to suit unless it consents thereto, and its liability in suit cannot be extended beyond the plain language of the statute authorizing it."[2](source: Wikipedia, naturally)

Re:

I don't know about this sort of thing in particular, but I personally know 8 people in Canada & Europe who used to regularly come to the US but no longer do so because of the sheer awfulness of the TSA.